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Why laws to fight sex trafficking often backfire

Rooted in racial panic, they seek to solve the wrong problem.

A screenshot of the website Backpage.com on April 6, 2018. A 1996 law that shields online services from being liable for what their users do would be weakened by a sex-trafficking bill awaiting President Trump’s signature. (Damian Dovarganes/AP)

“Sex traffickers — these are the worst human beings on Earth — exploit our porous border to sell young girls and women into modern-day slavery,” President Trump said at his rally in El Paso last month, arguing for building of a wall on the border of Mexico and the United States.

The Trump administration has said that ending human trafficking is one of its “highest priorities.” Last year, Trump signed the Fight Online Sex Trafficking Act (FOSTA), which is supposed to prevent children from being sold for sex. The law led to the shutdown of Backpage.com, the Craigslist personals section and other websites because it makes a website’s owner liable for ads that “promote or facilitate the prostitution of another person.” It also allows victims of trafficking to sue websites hosting such ads.

In theory, FOSTA, and the Trump administration’s fight against sex trafficking, is laudable. Yet historically, such legislation has really been about escalating racially rooted fears of immigration, not combating sexual violence.

More than a hundred years ago, in 1910, President William Howard Taft signed the White-Slave Traffic Act, also known as the Mann Act, into law. Like FOSTA, the Mann Act was supposed to prevent sex trafficking of girls and women. The Mann Act made it a felony to transport a woman or girl across state lines for “prostitution or debauchery, or for any other immoral purpose.”

Ostensibly the law was meant to protect women from being forced into prostitution. But in practice, the law ended up promoting anti-immigrant policies, harming ordinary men and women and hurting sex workers engaged in consensual acts.

The Mann Act emerged from two related motives: fear of immigrants and racism. Like today, the porous borders of a neighboring country were considered a major cause of sex trafficking in the United States. But in the early 20th century, the country bearing the blame was Canada. Chicago’s U.S. attorney, Edwin W. Sims, the co-author of the Mann Act along with Rep. James Robert Mann, warned in the book “War on the White Slave Trade” that one-third of 100 prostitutes at a brothel in Boston came from Canada.

The racism in the White-Slave Traffic Act was right there in its title. It was called white slavery to distinguish it from the recently prohibited practice of chattel slavery in the American South. Moreover, even though the text of the law didn’t say that only white girls and women were protected, in practice, few people were ever prosecuted for transporting black girls or women across state lines. Mann himself claimed that “the white-slave traffic, while not so extensive, is much more horrible than any black-slave traffic ever was in the history of the world.” And while black women and girls weren’t protected, black men were prosecuted under the act for traveling with their white girlfriends, most famously boxer Jack Johnson.

But it wasn’t just anti-black sentiment the law trafficked in. Jews, many of whom were recent immigrants from Eastern Europe, were regularly targeted under the act. In 1909, drumming up support for the proposed anti-trafficking law, Sims’s book claimed: “It is the absolute fact that corrupt Jews are now the backbone of the loathsome traffic [in women] in New York and Chicago.”

The act, rooted in racist and anti-immigrant hysteria, relied on false statistics to stoke fear. “Not fewer than fifteen thousand girls have been imported into the country in the last year as white slaves,” wrote Sims in 1909. Three years later, after the Mann Act had gone into effect, Stanley W. Finch, chief of the Bureau of the Investigation (a precursor to the FBI), claimed, “Not less than 25,000 young women and girls are annually procured for this traffic.”

However, convictions for trafficking belied this claim. Only a tiny percentage of the people prosecuted under the act were traffickers, and most weren’t even involved in the prostitution industry. The Mann Act ended up targeting sex work under the guise of preventing sex trafficking. According to Justice Department statistics, during the first four years the Mann Act was in existence, 71 percent of convictions were for sex work, 14 percent for white slavery, about 10 percent for consensual adultery or fornication and about 5 percent were fornication or adultery “accompanied by the use of fraud or force.”

As those statistics suggest, the Mann Act targeted vulnerable populations for suspicion of sex trafficking and actually harmed those working in the sex industry. During the early 1900s brothels — which had provided health care, safety and sometimes education to workers — were closed, as many cities passed anti-prostitution measures. Sex workers ended up working on the streets, often under the control of pimps who were much more dangerous to work for than madams. Doctors who treated prostitutes were prosecuted, leading sex workers to be refused health care in the name of helping stop white slavery.

But it wasn’t just consensual sex workers who were negatively affected by the Mann Act: it was all women. A woman traveling with a man who wasn’t her husband risked her partner’s arrest under the Mann Act, even if she had consented to sex and travel. Thus the Mann Act worked as a tool to police women’s sexuality and limit their movement.

The paternalistic nature of the Mann Act hurt both sexes, as it ignored the trafficking of boys and the numerous male prostitutes who escaped prosecution and regulation, unlike their female counterparts. It wasn’t until November 1986 that the Mann Act became completely gender neutral.

So far, FOSTA’s development has been eerily similar to the Mann Act’s. Trump has connected his anti-immigration policies to sex trafficking, arguing in a recent “Face the Nation” interview, “This really is an invasion of our country by human traffickers. These are people that are horrible people bringing in women, mostly, but bringing in women and children into our country.”

FOSTA’s cost to purported victims is equally troubling. Women’s travel is now being monitored by some hotel chains in the name of preventing sex trafficking. Recently, Marriott employees were instructed to be wary of women traveling and drinking alone at hotel bars, as these could be signs that a woman is being trafficked. Women and girls have been detained on airplanes, as well. Last month when Cindy McCain saw a woman traveling with her child, she incorrectly assumed the child was being trafficked because, as McCain said, “the woman was of a different ethnicity than the child.”

And even though sex workers warned that FOSTA would put them at risk, lawmakers ignored them. As former LAPD officer and former sex worker Norma Jean Almodovar told me: “We don’t need special laws for prostitution [and sex trafficking]. There are laws making it illegal to traffic someone, illegal to rape someone. It’s illegal to force someone to work. It’s very patronizing to have a concept that the adult woman needs the police to [check in to] see if she’s trafficked. We don’t have cops go door to door asking women if they are victims of domestic abuse.”

And here is where history matters: Laws intended to protect women from sex trafficking nearly always do them harm.